Constitutional Right to Have an Abortion - Essay Example

Roe v. Wade The Roe v. Wade case, brought before the U.S. Supreme Court in 1973, resulted in the Court’s determination that women have the constitutional right to have an abortion prior to when the fetus is viable, meaning when it can survive on its own outside the woman’s womb. Since this decision was handed down, Roe v. Wade has been the subject of a constant, divisive public and political debate regarding its moral, ethical and constitutional merits. The plaintiff, Norma McCorvey, who represented all women who are pregnant in the case, used the alias ‘Jane Roe.’ The defendant was the county of Dallas, Texas. Roe’s claim charged that the abortion law in Texas was in violation of the constitutional rights of her and all other pregnant women. The Supreme Court decided for Roe effectively making abortion legal in the U.S. in the landmark case. The decision invalidated any state law that restricted a women to have or a doctor to perform an abortion during the first three months (first trimester) of a pregnancy. It also restricted abortions during the second-trimester unless a woman’s health was in jeopardy (Gale, 1997: 312). Though the case was then and remains today controversial, the Court’s decision was correct from a constitutional context. Critics of the decision have generally made arguments based on personal moral beliefs which are irrelevant when the language of the Constitution is examined. Their moral arguments against the Roe decision can be quickly invalidated by weighing the precedents of constitutional decisions reached by the Supreme Court in addition to reading the specific wordage contained in the Constitution. There are, however, valid questions regarding the Constitutional issues of the Roe decision that deserve answering. When most people speak disapprovingly of the Roe decision, they base their objection purely on moral grounds but scholars, lawyers and especially judges who condemn the decision should only do so based on constitutional grounds in addition to voicing their moral objections. The argument against the decision should address the 9th Amendment which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (“Bill of Rights”, 2006). Those opposed have said that the ninth, or any other amendment, does not specifically mention abortion therefore the Constitution is not applicable when attempting to determine the legality of abortion rights. This opinion, however, very obviously contradicts the short and to the point statement that is the Ninth Amendment which clearly encourages the recognition of abortion and all other rights over and above what is contained in the Constitution. Just because the word ‘abortion’ does not appear, the Constitution is still the origin for legal precedence fir this issue as it is for all other civil rights cases. The Constitution also answers those that argue that the issue should be decided on the state level. The Ninth Amendment, along with the other amendments in the Bill of Rights, was initially understood to only apply to the federal government but not to the individual states. The ratification of the Fourteenth Amendment (1868) expanded the authority of the Bill of Rights to include all states. Judicial decisions since that time have formed solid precedent in this interpretation of the Fourteenth Amendment which states, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (“Fourteenth Amendment”, 2006). Most law scholars agree that the language of the Fourteenth Amendment is logically understood to mean that the people are protected from states infringing the rights outlined in the Constitution. Those that criticize the Roe decision have complained that the nation’s founders used general terms to frame the Constitution and did not intend for the ambiguous use of the word ‘rights’ to include the right to an abortion. They further propose that those who ratified the Constitution were ‘God fearing’ men who would have opposed the practice. Even if this argument could be proved valid on a constitutional basis, the inference that the Founders were wholly opposed to the practice is probably inaccurate. A good deal of Justice Blackmun’s opinion regarding the Roe case was centered around the fact that prior to the latter part of the 1800’s, first trimester abortions were commonly allowable in the U.S. (Dorf, 2003). The argument does take on some validity when considering that those that who ratified the Ninth and Fourteenth Amendments considered Constitutionally protected equal rights to be harmonious with the discrimination of women and the segregation of the races. Both of these practices have however been justifiably condemned by authorization of the Ninth and Fourteenth Amendments. Two questions arise when debating whether the Constitution legally protects a woman’s right to have an abortion performed. The first involves reasoning if the fundamental interests of women are affected by the restricting of abortion. The other inquires if laws preventing legal abortions are justified even if the Constitution does in fact address this issue. Answering the first question is rather simple. Courts regularly hear cases so as to decide whether or not the rights of an individual are protected by the Constitution. If courts are engaged in recognizing if the fundamental rights of individuals are protected, then the personal interest of a woman being forced by the government to have an unwanted child certainly applies. Recognizing that courts do indeed have the authority to intervene in decisions involving individual rights citing the Constitution as precedence, could laws preventing abortions still be justified in spite of this egregious encroachment on the civil liberties of women? After all, constitutional rights are not unconditional. Why doesn’t the government have an interest in protecting the rights of those not yet born? The Fourteenth Amendment answers this question. It begins by referring to “All persons born ... in the United States” (“Fourteenth Amendment”, 2006), indicating that the protections under the Constitution refer only to persons who are ‘born.’ Those opposed to Roe also argue that if the Constitution does not directly address an issue, then the Congress, not the courts should decide matters such as this which have weighty moral implications. The Roe decision essentially addressed this question by asserting the government’s concern for the life of the unborn does not outweigh the constitutional rights of the born and thus their decision to terminate a pregnancy. The Court did draw a line distinguishing what is considered murder of a child. On this issue, those that oppose abortion rights do have legal justification for debate. Viability seems to be an appropriate benchmark because in the early weeks following conception, the fetus is not a conscious being although some of religious conviction argue that it does have a soul. Viability is somewhat scientifically determined while the presence of a soul is not. Therefore, the line can only be drawn at the viability of the unborn as any other method by which to determine when abortions are considered murder is unclear (Dorf, 2003). Criticizing the Roe decision purely on moral grounds is easy but the difficulty lies in offering an alternative that is not subjective and clear enough to be enforceable. The argument for the legislative process to decide socially divisive issues and not the courts has been widely discussed. The Supreme Court decision that struck down segregation in schools in the 1954 Brown v. Board of Education case was a very divisive issue but few disagree with this decision although it was a question of morality decided on the language of the Constitution (“Brown v. Board of Education”, 2004). The significant distinction between the Brown and Roe cases is that people ultimately came to acknowledge the principle that all races were equally entitled to the rights guaranteed by the Constitution. The debate evolved to how this equity could be realized but the abortion debate remains the issue on moral grounds and not how to best administer the law. Though the constitutionality regarding the Roe decision can be easily argued, it must be acknowledged that since the issue remains intensely controversial more than 30 years after, opponents may be justified in believing the right to an abortion should not be thought of as fundamental. Fundamental rights reprove basic truths in the functioning of a society. Rulings preventing the segregation of the races are now accepted by the public therefore can be viewed as fundamental rights. Abortion rights do not enjoy this universally held view so it is fair to debate the issue even on legal grounds though that is seldom the arena for debate. It is understood, however, that the majority of Americans do agree with the Court’s decision and believe it to be a fundamental right (Dorf, 2003). Roe v. Wade was and is a case that evokes emotions on both a moral and legal basis. The Supreme Court’s decision cannot be deemed a mistake as its critics allege unless they are willing to totally discard legal precedence and words of the Constitution itself. Abortion is legal and considered a right guaranteed by the Constitution but an appointment or two to the Supreme Court could swiftly take away the right at the federal level. Works Cited “Brown v. Board of Education: About the Case.” Brown Foundation for Educational Equity, Excellence and Research. (April 11, 2004). December 1, 2006 Dorf, Michael D. “Was Roe v. Wade Rightly Decided? Will it be Overruled?” CNN Law Center. (January 23, 2003). December 1, 2006 “Roe V. Wade: 1973.” Women’s Rights on Trial. 1st Ed. New York: Thompson Gale, 1997. December 1, 2006 “United States Constitution Bill of Rights.” Cornell Law School. Legal Information Institute. (2006). December 1, 2006 “United States Constitution Fourteenth Amendment.” Cornell Law School. Legal Information Institute. (2006). December 1, 2006. Read More